NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 15-1966

___________ CONSOL ENERGY, INC., Petitioner

v. MICHAEL J. SWEENEY; DIRECTOR, OFFICE OF WORKERS COMPENSA TION PROGRAMS, UNITED STATES DEPART MENT OF LABOR, Respondents

___________________ _________________ On Petition for Review of a Decision and Order of the Benefits Review Board (BRB No. 14-0078 BLA)

___________________ _________________ Submitted under Third Circuit LAR 34.1(a) February 11, 2016 Before: FUENTES, KRAUSE, AND ROTH, Circuit Judges (Opinion filed: May 2, 2016)

OPINION *

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2 KRAUSE, Circuit Judge

. Before the Court is Consol Energy, Inc .’s Petition for Review of a decision of the United States Department of Labor Benefits Review Board (“Board”) affirming an award of disability benefits to miner Michael J. Sweeney under the Black Lung Benefits Act (“BLBA”), 30 U.S.C. §§ 901-944. For the reasons that fo llow, we deny the Petition for

Review. I. Facts and Procedural History 1 Respondent Michael J. Sween ey worked in the coal mines for nearly twenty-five years until 1999; for at least part of that time, he was employed by C onsol. He was also a

smoker. On March 4, 2011, Sweeney timely file d a claim for benefits under the BLBA, alleging that he suffers from respiratory diffi culties due to his coal mine employment.

The Administrative Law Ju dge (“ALJ”) concluded that, given Consol’s concessions that Sweeney worked more than fifteen years in the coal mines and had a “totally disabling respiratory or pulmonary impairment,” App’x 7, 36, a rebuttable presumption exists that Sweeney has legal pneumoconiosis 2 by virtue of 30 U.S.C.

1 Because we write primarily for the pa rties, we provide background only as relevant to the issues on appeal.

2 “Pneumoconiosis” is “a chronic dust di sease of the lung and its sequelae, including respiratory and pulmonary impairment s, arising out of coal mine employment.” 20 C.F.R. § 718.201(a). Pneumo coniosis is of two types. Clinical pneumoconiosis “consists of those diseases recognized by the medical community as pneumoconioses, i.e., the conditions characterized by perm anent deposition of substantial amounts of particulate matter in the lungs and the fibr otic reaction of the lung tissue to that deposition caused by dust exposure in coal mine employment.” 20 C.F.R. § 718.201(a)(1). Legal pneumoconiosis, on th e other hand, includes “any chronic lung3 § 921(c)(4). In an effort to rebut the § 921(c)(4) presumption, Consol offered the opinions of Drs. Gregory Fino and Joseph Re nn to establish that (1) Sweeney does not have pneumoconiosis, or (2) his respiratory or pulmonary impa irment did not arise out of his coal mine employment. 3 See 30 U.S.C. § 921(c)(4). Bo th opined th at Sweeney’s lung disorders “are not associ ated with coal workers’ pn eumoconiosis,” and the ALJ found parts of their opinions “very persuasive .” App’x 42. However, the ALJ ultimately concluded that their opinions did not persuasively rebut th e § 921(c)(4) presumption in view of their inability to esta blish the cause of Sweeney’s im pairment and inconsistencies between their opinions. In the course of this analysis, the ALJ referenced 20 C.F.R. § 718.305(d) (2012), 4 which provides that the § 921(c )(4) presumption cannot be rebutted “on the basis of evidence demonstrating the ex istence of a totally disabling obstructive respiratory or pulmonary dis ease of unknown origin.” See App’x 43 n.12. On appeal, Petitioner argued to the Board that the ALJ did not properly consider whether it had rebutted the § 921(c)(4) pr esumption of legal pneumoconiosis and erroneously rejected the opinions of Drs. Fino and Renn by, in part , relying on 20 C.F.R. § 718.305(d). The Board rejected both arguments.

disease or impairment and its sequelae arising out of coal mine employment.” 20 C.F.R. § 718.201(a)(2).

3 Sweeney was examined by several other experts in connection with his claim for benefits, but the ALJ found that their opinions were not persuasive.

4 The text of this regulation was changed in 2013, but the new regulation contains almost identical language. See 20 C.F.R. § 718.305 (d)(3) (2013).4 II. Jurisdiction and Standard of Review We have jurisdiction to review the Boar d’s determination purs uant to 33 U.S.C. § 921(c), as incorporated by 30 U.S.C. § 932(a). “The Board is bound by the ALJ’s findings of fact if they are supp orted by substantial evidence.” Hill v. Dir., Office of Workers’ Comp. Programs , 562 F.3d 264, 268 (3d Cir. 2006 ). We review the Board’s decision only to determine “whether an erro r of law has been committed and whether the Board has adhered to its scope of review.” Id. (internal quotation marks omitted) (quoting Kowalchick v. Dir., Office of Workers’ Comp. Programs , 893 F.2d 615, 619 (3d Cir.1990)). “We exercise plenary review over the ALJ’s legal conclusions adopted by the [Board].” See Soubik v. Dir., Office of Workers’ Comp. Programs , 366 F.3d 226, 233 (3d Cir. 2004). Further, “we mu st independently review the record and decide whether the ALJ’s findings are rational, consistent with applicable law and supported by

substantial evidence on the record considered as a whole.” Hill , 562 F.3d at 268

. Substantial evidence is “such relevant evid ence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citation and internal quotation marks omitted).

III. Discussion

A. Whether the ALJ applied th e correct rebuttal standard The BLBA provides benefits “to coal miners who are totally disabled due to pneumoconiosis” arising out of coal mine employment. 30 U.S.C. § 901(a). A miner

must establish four elements to obtain benef its under the BLBA: “(1) [d]isease: that the miner suffers from pneumoconio sis in clinical or legal form, or both; (2) disease5 causation: that the pneumoconiosis arose at least in part out of coal mine employment; (3) disability: that the miner has a pulmonary or respiratory impairment that prevents the performance of the miner's usual coal mine work; and (4) disability causation: that the miner's pneumoconiosis contributes to that disability.” 78 Fed. Reg. 59102-01, 59106 (Sept. 25, 2013) (citing 20 C.F.R. § 725.202(d)(2)). Where, as here, “a miner was employed fo r fifteen years or more” in a coal mine

and “other evidence demonstrat es the existence of a totally disabling respiratory or pulmonary impairment,” then th ere is a “rebuttable presumpti on that such miner is totally disabled due to pneumoconiosis” and is therefore entitled to be nefits. 30 U.S.C. § 921(c)(4). A party opposing the award of bene fits may rebut this presumption in one of two ways: (1) by establishing that the mine r “does not . . . have” clinical or legal pneumoconiosis, or (2) by “[e]stablishing that no part of the mine r’s respiratory or pulmonary total disability was caused by [leg al or clinical] pneum oconiosis,” 20 C.F.R. § 718.305(d)(1) (2013). In order to establis h rebuttal under the seco nd prong, the party opposing benefits must “rule[] out any conn ection between the claimant’s disability and coal mine employment.” Antelope Coal Co. v. Goodin , 743 F.3d 1331, 1336 (10th Cir. 2014) (citing 78 Fed. Reg. at 59107); see also W. Va. CWP Fund v. Pender , 782 F.3d 129, 140-41 (4th Cir. 2015); cf. Kline v. Dir., Office of Workers’ Comp. Programs , 8776 F.2d 1175, 1179 (3d Cir. 1989) (applying the “rule out” standard to a similarly worded regulation). 5 Consol asserts that the ALJ only consid ered whether Consol rebutted the element of disability causation, and not whether it re butted the element of legal pneumoconiosis. Consol is incorrect. After concluding that Sweeney did not have clinical pneumoconiosis, the ALJ concluded that th e § 921(c)(4) presumption gave rise to a finding that Sweeney had legal pneumoconios is. Later, in Section V of his opinion entitled “Cause of Total Disability,” he expressly considered whether the evidence disproved the presumption of legal pneumocon iosis. Specifically, the ALJ found that Drs. Fino and Renn “do not explain w hy [Sweeney’s pulmonary impairment,] centrilobular emphysema[,] was caused by sm oking alone instead of by his coal dust exposure either singly or in co njunction with his smoking.” App’x 43. In finding that the evidence did not completely ru le out that any part of Sweeney’s emphysema was caused by coal dust exposure, the ALJ necessarily foun d that the presumption of the existence of

5 The ALJ quoted the prior version of th e regulation. App’x 35-36 (quoting 20 C.F.R. § 718.305(d) (2012)). However, that version also allows rebuttal by showing either the absence of pneumoconi osis or that “the total disab ility did not arise in whole or in part out of dust exposure in the miner’s coal mine em ployment.” App’x 36 (quoting 20 C.F.R. § 718.305(d) (2012)). Further, courts have concluded that the “rule out” standard applies to rebuttal under the se cond prong of this prior version. See Blakely v. Amax Coal Co. , 54 F.3d 1313, 1320 (7th Cir. 1995) (stating that in order to rebut the presumption under prong two, a party “must prove by a preponderance of the evidence that coal dust exposure was not a contribu ting cause of [the claimant’s] disabling pulmonary impairment”); cf. Kline , 877 F.2d at 1179 (applying the “rule out” standard to a regulation that permits rebuttal by showing that “[t]he evidence esta blishes that the total disability . . . of the miner did not arise in whole or in part out of coal mine employment”). Thus, the ALJ’s reference to the old regulation was inconsequential.7 pneumoconiosis (in this case, legal pneumocon iosis), was unrebutted. And, in finding that that Sweeney suffered from legal pneum oconiosis, the ALJ nece ssarily found that disease causation was established. Legal pneu moconiosis is “any ch ronic lung disease or impairment and its sequelae arising out of coal mine employment ,” 20 C.F.R. § 718.201(a)(2) (emphasis added), while the el ement of disease causation requires the miner to show that his pneumoconiosis “aros e at least in part out of coal mine employment,” see 78 Fed. Reg. at 59106. In esse nce, implicit in a finding of legal pneumoconiosis is a finding of disease causation. Cf. Andersen v. Dir., Office of Workers’ Comp. Programs , 455 F.3d 1102, 1006 -07 (10th Cir. 2006).

The ALJ then considered whether Cons ol rebutted the element of disability causation—that is, that Sweeney ’s disability was caused by his pneumoconiosis. The

ALJ found that the conclusions of Drs. Fi no and Renn did not persuasively rebut the § 921(c)(4) presumption establishi ng disability causation. In short, far from considering only whet her the element of disability causation was rebutted, the ALJ also considered whether th e elements of disease and disease causation were rebutted. As the Board correctly conc luded, the ALJ “combined” his discussion of

whether Consol rebutted these el ements into one section. A pp’x 7 n.6. Indeed, the ALJ explained as much when he wrote that any rebuttal of the “presumption regarding whether [Sweeney’s] respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine, shall be addressed” along with the

discussion of whether Consol rebutted disability causation in Section V. See App’x 36.8 Therefore, we find that the ALJ properly considered whether Consol rebutted the § 921(c)(4) presumption and did not commit an error of law. B. Whether the ALJ’s rejection of the opinions of Drs. Fino and Renn was consistent with the applicable law and supported by substantial evidence The ALJ gave the opinions of Drs. Fino and Renn little weight and therefore

concluded that Consol did not rebut the § 921(c)(4) pr esumption. Consol seems to suggest that the ALJ’s decisi on was not supported by subs tantial evidence and also argues that the ALJ improperly re lied on 20 C.F.R. § 718.305(d). We address each argument in turn. The ALJ found that the opinions of D r. Fino and Renn were not sufficiently persuasive to rebut the § 921(c)(4) presum ption and that Sweeney was therefore entitled to benefits. These conclusions were supported by substantial evidence. After first stating otherwise, Dr. Fino concluded that Sweene y does not have usual interstitial pneumonitis (“UIP”), while Dr. Renn concluded that Sweene y likely has UIP. Both concluded that Sweeney has centrilobular emphysema and Dr. Renn acknowledged that this disease can be caused by coal dust exposu re. The ALJ was not persuaded by their efforts to explain why no part of Sweeney’s emphysema or pulmonary disability was caused by coal dust. 6 The ALJ was therefore entitled to gi ve these opinions little weight. See Balsavage v.

6 The ALJ wrote that while Dr. Fino was of the view that Sweeney’s emphysema did not contribute to his pulmonary impairment , Dr. Renn did not address what effect, if any, Sweeney’s emphysema had on his impairme nt. In fact, Dr. Renn did testify that Sweeney’s emphysema contributed to his impair ment. Therefore, the opinions of Drs. Renn and Fino reflect even more inconsistenc ies than noted by the ALJ, and Dr. Renn’s testimony further undermines Consol’s effort to rebut the § 9 21(c)(4) presumption.9 Dir., Office of Workers’ Comp. Programs , 295 F.3d 390, 396 (3d Cir. 2002) (noting that

the ALJ “has broad discretion to determine th e weight accorded each doctor’s opinion”); Mancia v. Dir., Office of Workers’ Comp. Programs , 130 F.3d 579, 588 (3d Cir. 1997) (stating that the “ALJ is not bound to accept th e opinion or theory of any medical expert, but may weigh the medical evidence and draw its own inferences”); see also Mingo Logan Coal Co v. Owens , 724 F.3d 550, 558 (4th Cir. 20 13) (concluding that the ALJ properly gave less weight to the opinions of experts in part because they did not fully address the contrary opinions of other experts and did not co nvincingly rule out coal dust exposure as contributing to a claimant’s disease). At bottom, the ALJ was confronted w ith only weak evid ence to show that Sweeney “does not . . . have” pn eumoconiosis or that “no part of” of his disability was caused by pneumoconiosis. See 20 C.F.R. § 718.305(d). Th e ALJ’s conclusions that Consol did not rebut the § 9 21(c)(4) presumption and, ultimately, that Sweeney was entitled to benefits, thus were su pported by substantial evidence.

Consol next maintains that the ALJ made a legal error. In describing why he discredited the opinions of Dr s. Fino and Renn, the ALJ wrote, “in no case shall the [§ 921(c)(4)] presumption be considered rebutted on the basi s of evidence demonstrating the existence of a totally disabling obstructive respiratory or pulmonary disease of unknown origin.” App’x 43 n.12 (emphasis added) (inter nal quotation marks omitted) (quoting 20 C.F.R. § 7 18.305(d) (2012)). The ALJ then e xplained that “[w]hile neither

Dr. Renn nor Dr. Fino found evidence of an obstructive respiratory or pulmonary disease,10 they were unable to determin e the origin of [Sweeney’s] to tally disabling respiratory or pulmonary disease.” App’x 43 n.12. Because this case doe s not involve an obstructive disease, Consol argues that the ALJ’s c itation to and reliance upon this provision

constitutes an error of law. Consol’s argument fails. The ALJ acknow ledged that neither Dr. Fino nor Dr. Renn diagnosed an obstructive disease, reflecting a recognition that 20 C.F.R. § 718.305(d) does not apply. Rather, as the Board concluded, it appears the ALJ cited 20 C.F.R. § 718.305(d) as general support for th e principle that the ex perts’ inability to identify the etiology of Sw eeney’s impairment undermin ed their credibility and the persuasiveness of their opinions, and his reje ction of their conclusions was based instead on inconsistencies between their opinions and their reliance on an idiopathic cause of Sweeney’s impairment—reasons separate and apart from any alleged reliance on 20 C.F.R. § 718.305(d). Acco rdingly, the ALJ did not commit an error of law.

IV. Conclusion For the foregoing reasons, we will deny the Petition for Review.